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AGI'V^ H^ w&;< Commonwealth of Massachusetts UMASS/AMHERST Office of the Attorney General 31ZDbb DE72 T3MT 2 Harshbarger Scott Attorney General * \\m me J 2i «* $^1^ ? Of THE RIGHTS OF INDIVIDUALS WITH THE DISABILITIES IN SCHOOL CONTEXT Stanley Eichner J. Director, Disability Rights Project Assistant Attorney General Civil Rights Division (617) 727-2200 (V) 727-4765 (TTY) (617) THE RIGHTS OF INDIVIDUALS WITH DISABILITIES IN THE SCHOOL CONTEXT STANLEY EICHNER J. Director, Disability Rights Project Civil Rights Division Office of the Attorney General Boston, Massachusetts 02108 A. Introduction More than twenty years ago, Section 504 of the Rehabilitation of Act of 1973, 29 U.S.C. 794, ("Section 504") was enacted. § Section 504, the first federal statute to extend the protections of the federal civil rights statutes to individuals with disabilities, prohibited discrimination against "the handicapped" by any program which receives federal financial assistance. Public schools, all of which receive federal financial assistance within the meaning of the statute, have been subject to the non-discrimination mandate of Section 504 since that time. Seventeen years later, on July 26, 1990, the President signed the American with Disabilities Act ("ADA"), landmark a statute which some disability advocates have characterized as their "Magna Carta". While the ADA consists of five different titles, each of which covers a different legal context or type of entity, Title II, which covers "public entities", is the title which applies to public schools. "Public entity" is defined as "any state or local government; any department, agency, special purpose © Stanley J. Eichncr, Director, Disability Rights Project, Office ofthe AttorneyGeneral Disability Rights Project^ Office of the Attorney General Page -1- district or other instrumentality of a state .. or local government." 42 U.S.C. § 12115. Thus, public schools, both as recipients of federal financial assistance and as public entities, are prohibited from discriminating against individuals with disabilities by both Section 504 and Title II of the ADA. Substantively, the two statutes are virtually the same. As recognized in the legislative history, Title II of the ADA imposes the substantive requirements of Section 504 on all public entities, regardless of whether they receive federal financial assistance 28 . C.F.R. Appendix 35.103. Since school § systems have been subject to the non-discrimination mandate of Section 504 for so long, and have developed greater familiarity with its provisions, this article will focus primarily on the requirements of the ADA, and cite the relevant provisions of the 504 regulations, where appropriate. It is important to note that although the focus of legal rights for individuals with disabilities is often centered upon students with disabilities, in fact there are at least three categories of non-students who are protected by the ADA and Section 504 in a school setting: 1) employees with disabilities, parents 2) with disabilities, and 3) members of the public with disabilities who attend school or non-school functions in school buildings. As explained in the analysis section which accompanies the ADA regulations that delineate the scope of their application, "public school systems must comply with the ADA in all of their services, programs or activities, including those open to parents or to the public." 28 C.F.R. Appendix §35.102. Examples Disability Rights Project_ Office of the Attorney General Page -2- include "graduation ceremonies, parent-teacher organization meetings, plays and other events open to the public and adult education classes." Id . Three other prefatory remarks are appropriate. First, private schools, as "places of education", 28 C.F.R. § 36.104, are considered public accommodations within the meaning of Title III of the ADA, and as such are subject to its non-discrimination requirements. 28 C.F.R. Part 36. Private schools, which do receive federal financial assistance, such as almost all colleges and universities, are also subject to the requirements of Section 504. A discussion of Title III of the ADA is beyond the scope of this chapter, but organizations that can provide useful information on Title III and other ADA issues are listed in Attachment A. Second, at the time of the enactment of the Rehabilitation Act, appropriate language for referring to individuals with disabilities included the term "handicapped." The currently accepted terminology of choice is "disability", with the emphasis on the individual, rather than the disability. Thus, "individual with a disability" is the language used in the ADA. Although there is no substantive difference between the terms "handicap" and "disability", see 28 C.F.R. Appendix § 35.104, this chapter will follow the usage preferred by individuals with disabilities, except where required to use the precise language of Section 504. Third, the other significant federal statute that affords legal rights to individuals with disabilities in the school context, and would fall within the scope of this chapter is the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et sea The legal rights of students with . special needs is thoroughly covered in a separate chapter of this book. " Disability Rights Projects Office of the Attorney General Page -3- B Essential Principles . Subtitle A of Title II of the ADA (which are the generally applicable provisions of the Act, in contrast to subtitle B, which applies to public transportation systems) is barely more than a page in length. Its prohibition of discrimination states: "... no otherwise qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 USC 12132. § Also included within the statute was the requirement that the Attorney General promulgate implementing regulations. Those Title II regulations, 28 C.F.R. Part 35, apply the above general prohibition of discrimination to various aspects of governmental entities. Prior to a discussion of the substantive requirements of Title II, it is necessary to review the definitions of certain key terms or phrases: 1. Disability The statute's : three-part definition, which essentially adopts the definition used in the Rehabilitation Act of 1973, is purposely quite broad. Under the Act, "individual with a disability" is defined as someone who (1) has a physical or mental impairment that substantially limits one or more of the major